Levy v. Rothe

Bisohoef, J. The defendant’s employment of the plaintiff, a real estate broker, was evidenced by the following writing: “In consideration of the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged and of other good and valuable considerations, I do hereby give unto Daniel Levy, of the city of Mew York, the option and sole agency to sell and offer for sale the premises Mo. 257 West Thirtieth street in the city of Mew York, about 24 x 140, for the period of six months, from the date hereof, and hereby agree not to place the said premises for sale during the said period in the hands of any other agent or broker. Price, $20,000.” Within a month from the day upon which the employment took effect the defendant herself secured a purchaser and sold the premises. On the next succeeding day the plaintiff presented a customer who was able and willing to purchase upon the prescribed terms, and upon such customeris rejection by the defendant this-action was instituted to-recover the plaintiff’s commissions. Upon the trial the justice ruled in effect that the defendant, pursuant to the terms of the plaintiff’s employment, was precluded from selling to a person other than a purchaser secured by the plaintiff, except at the risk of being compelled to pay the latter’s commissions, if within the period limited for such employment he should present a customer who was able and willing to pay the price demanded and otherwise to comply with the defendant’s ternas. The charge to the jury embodied the ruling alluded to, and the exceptions to such charge present the only assignments of error which merit discussion. It is ordinarily true, as the defendant’s counsel urges, that the employment of one broker does not disable the owner from employing another, or from negotiating a sale in person (Chilton v. Butler, 1 E. D. Smith, 150; Goldsmith v. Cook, 39 N. Y. St. Repr. 57), since the right of the principal to do-, in person or by another, that which he has empowered his agent to do, is an implied condition of every agency (Dole v. Sherwood, 5 Law. Rep. Ann. 720); but it must be conceded that if the owner employs a broker with the understanding that the latter’s agency shall be exclusive, the [404] owner will subject himself • to liability for breach of contract if, notwithstanding, he engages or avails himself of the aid of another broker for the same purpose. Moses v. Bierling, 31 N. Y. 462. However, it should be observed that the case at bar differs materially from the case of a mere exclusive agency to negotiate a sale. Upon application of the rule governing the interpretation of contracts, that effect should be given if possible to every part of the contract under review (2 Parsons on Cont. 89; Flanagan v. Fox, 6 Misc. Rep. 132), it is apparent from the contract before us that it was thereby intended, not only to secure to the plaintiff the exclusive agency to negotiate a sale, but also the exclusive right to negotiate a sale, during the period limited. Schultz v. Griffin, 5 Misc. Rep. 499; Dole v. Sherwood, supra; Golden Gate Packing Co. v. Farmers’ Union, 55 Cal. 606. Such a right necessarily resulted from the plaintiff’s “ option ” to sell, unless, indeed, the c'ontracting parties are to be charged with redundancy. The word “ option ” may have been inartificially chosen by the parties, but while it remains its effect is not to be avoided. It is a synonym for choice or preference (Century Dictionary, “ Op.tion ”), and so must be taken as evidence of an intention-.to confer upon the plaintiff a right which 'he was to possess or 'enjoy above all other persons.. The exclusive agency of the plaintiff to negotiate a sale in the defendant’s behalf plainly followed from the context of the writing hereinbefore set forth, without reference or allusion to such “ option,” and unless, therefore, it is held that the defendant 'intended to waive- her right to negotiate a sale in person, so much of the contract as undertook to give the plaintiff an “ option ” to sell must be held to be meaningless or redundant, in violation of the rule of interpretation already alluded to. The exclusive agency to negotiate a sale, independently of any “ option ” to sell, secured to the plaintiff a preference over all persons other than the defendant. Obviously, therefore, the “ option,” choice or preference in the negotiation of á sale was intended to secure him against the interference- of the defendant in person as well. The verdict is amply supported by -the facts in evidence, and the judgment should, therefore, be affirmed. Daly, P. J., and MóAdam, J., concur. - Judgment affirmed, with costs.